Defending a DWI Raleigh Case: Phase III: Pre-Arrest Screening

Phase III is the final phase before the officer arrests the driver on a DWI.

The main focus during Phase III is on the driver’s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Portable Breath Test (PBT, or hand-held breathalyzer) to determine the presence of alcohol. The PBT should only be used to support the SFST; it should not be used in place of SFSTs.

In North Carolina, the results of a PBT are not admissible at trial (but they are admissible at pre-trial hearings).

The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus. See Appendix [X] for more on the SFST.

After the driver has performed the SFSTs, the officer will make a decision about whether the driver is drunk. The officer should use the totality upon the totality of the evidence developed during all three Phases of DWI detection.

An officer who conducts just one or just two of the three tests has not completed the SFST in accordance with the National Highway Traffic Safety Administration’s recommended procedures.

Many police officers in North Carolina do not perform the SFST correctly. A top Raleigh DWI lawyer will be able to evaluate whether the tests were completed properly, and if they were, whether the results showed that the driver was impaired.

Your best chance for beating your DWI lies in hiring a lawyer who will look at the entirety of officer’s behavior during Phase III to make sure that all procedures were followed.

Why is Phase III so important? It’s important because the officer must develop enough evidence – “probable cause” – that the driver has committed the crime of DWI in order to handcuff and arrest the driver.

If the officer leaped to the conclusion that the driver had committed a DWI without developing enough evidence, the officer has violated the driver’s rights. In that case, the driver will end up beating the case, provided a Judge agrees that the officer violated his rights.

If the officer believes he has probable cause, he will arrest. Note that just because an officer believes he has probable cause does not mean he’s correct.

A judge will always review the officer’s decision to make sure that he did have probable cause. If the judge believes the officer made a mistake, and was too hasty in arresting the driver, the judge can throw out the rest of the evidence collected, and throw out the DWI case.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.